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Board should certify not censor creativity

Filmmakers were increasingly critical of the censorship demanded by the CBFC Board, formerly headed by Pahlaj Nihalani, who was very recently sacked. The rebellion against censorship was initially started by independent directors and filmmakers who were aggrieved by the rampant and erratic ‘cuts’ that were demanded for the films. Several independent filmmakers filed pleas seeking relief against the cuts demanded by the CBFC board. They highlighted the archaic nature of the Cinematograph Act (1952) which they contended unfairly curtails the filmmakers’ artistic freedom.

The Ministry of Information and Broadcasting (MIB) recognised the disapproval of the media and film fraternity, and issued a notification in 2016 to constitute the Shyam Benegal Committee. The government’s decision to constitute a three-member committee indicated its disapproval of the way the CBFC board had been functioning over the past few years.

Several controversies arose over the cuts demanded by the CBFC, not only on particular films but also on international award winning Indian documentaries. The Board was suspected of politically motivated censorship. The MIB’s appointees had censored several documentaries that probe the social and political concerns of the society. The UPA appointed CFBC censored the movie Rajneeti, which depicted a character resembling Sonia Gandhi. They also censored Rakesh Sharma’s Final Solution(2004), whose character subtly referred to the then Gujarat CM, Narendra Modi. Similar cutting was borne by the 2015 film Dance of Democracy: Battle for Banaras, depicting political campaigning by Narendra Modi, Arvind Kejriwal and others in their historic fight for the Varanasi political constituency in the 2014 Lok Sabha elections.

Earlier this year, these restrictions seemed to overflow to documentaries, such as An Insignificant Man, based on Arvind Kejriwal’s political career, or the Accidental Prime Minister, depicting former prime minister Manmohan Singh’s life story. The CBFC asked the filmmakers to acquire no-objection certificates from the politicians represented in the documentaries, virtually suffocating their artistic freedom.

Last year, the CBFC raised 89 objections to Udta Punjab, concerned that the film might damage the reputation of the Punjab government. Subsequently, the film fraternity burst out in protest after three award winning documentaries based on current political issues, namely The Unbearable Being of Lightness based on Vemula’s suicide; In the Shade of Fallen Chinar, highlighting the Kashmir unrest; and March March March, tracking the protests at JNU last year, were denied screening by the CBFC. Some 160 filmmakers collectively wrote a letter to then Information and Broadcasting minister, M. Venkaiah Naidu, pleading for an exemption from the censorship tools of the CBFC to enable these films to be screened at film festivals.

Soon thereafter, actor-director Amol Palekar filed a writ petition in the Supreme Court highlighting violation of the fundamental right of artistic freedom under Article 19 of the Constitution. The Palekar petition challenged the political appointment of the CBFC board and asserted that the Cinematograph (Certification) Rules, 1983, were no longer in sync with today’s times. It asked the Court to confine the limited power of the CBFC to certification and not precensorship, as stated under Section 5-B of the Cinematograph Rules.

The petition highlighted the urgency for strict scrutiny of Sections 2(c) and (dd) of the Rules, thus excluding documentaries from the ambit of censorship by the CBFC. An alternative was proposed that allowed the documentaries to include a disclaimer for audiences (eg. about its unsuitability for persons below a certain age) that the CBFC could review and approve. Subjecting documentaries to prior censorship amounts to discriminatory treatment, violating the fundamental rights guaranteed by Article 14, Article 19(1)(a), and Article 21 of the Constitution, it was contended.

These claims incorporated several recommendations by the Shyam Benegal Committee in 2016 that highlighted the need to restrict the powers of the CBFC from censorship to certification. The committee also recommended that the certification categories be defined to prevent pervasive cuts and blanket censorship. After year-long inaction by the Government on the report of the Benegal Committee, Mr Naidu, in June 2017, officially expressed his agreement with the recommendations and indicated that the required amendments would be made soon. A month later – July 2017 – Smriti Irani was named the new Minister of Information and Broadcasting. One of her first acts was to replace CBFC head Pahlaj Nihalani with lyricist and screenwriter Prasoon Joshi.

There seems to be a fresh wave of rebellion within the artists and the media. Their persistent protests apparently led to the replacement of Nihalani. Though the appointment of the CBFC head by the Ministry can be problematic as CBFC often acts as gatekeeper for the political parties against media, the recent restructuring of the CBFC by the new minister seems to have brought a sigh of relief to filmmakers. Most of the new members are deeply rooted with the film fraternity.

The Rules must be re-framed to protect factual documentaries and short films from being censored. The government needs to restrictively limit the functioning of the CBFC to certification alone, and not require excisions amounting to prior censorship. Furthermore, there is a need for the Rules to enlist the qualifications and the merits for the membership of the CBFC to prevent any politically motivated appointments from taking place.

(The writers are, respectively, a student and a professor of law at the Jindal Global Law School)

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